W-02-738-2005 DAN 2 KES RAYUAN YANG LAIN Antara 1 ...

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DALAM MAHKAMAH RAYUAN MALAYSIA
RAYUAN SIVIL NO: W-02-738-2005
DAN 2 KES RAYUAN YANG LAIN
Antara
1. Sanmaru Overseas Marketing Sdn. Bhd. ... Perayu-Perayu
2. Yeoh Jin Beng Pemohon-Pemohon
Dan
1. P T Indofood Interna Corp … Responden-
2. P T Sanmaru Food Manufacturing Co Ltd Responden
Coram: Gopal Sri Ram, J.C.A.
James Foong Cheng Yuen, J.C.A.
Zulkefli bin Ahmad Makinudin, J.C.A.
JUDGMENT OF THE COURT
There are two (2) Notices of Motion filed by the appellants fixed
for hearing before us. Essentially, the appellants under the
respective Notice of Motions are applying to this Court for an Order
that the proceedings in the High Court of Kuala Lumpur Civil Suit No.
D4-22-1149-1993 be stayed pending the disposal of the Court of

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Appeal, Civil Appeals No. W-02-738-2005 and W-02-968-2005 filed
by the appellants. There is also a pending appeal before the Court of
Appeal filed by the respondents in Civil Appeal No. W-02-653-2005.
The first appellant is the second defendant and the second
appellant is the third defendant in the Civil Suit No. D4-22-1149-1993
filed by the respondents in which the first respondent is the first
plaintiff and the second respondent is the second plaintiff. We shall
refer the parties as they were in the proceedings before the High
Court.
At the outset of the hearing before us, by consent of the parties,
the said two Notices of Motion under Civil Appeal No. W-02-738-2005
and Civil Appeal No. W-02-968-2005 were treated as appeal proper
and heard together with the pending Civil Appeal No. W-02-653-
2005. The parties also agreed that due compliance with the Rules of
the Court of Appeal 1994 relating to appeal be dispensed with.
To have a better understanding of all the matters and issues
arising under the said three appeal cases, we would narrate a brief
summary of them as follows:
1. The first and second plaintiffs, commenced the Civil Suit
No. D4-22-1149-1993 in the Kuala Lumpur High Court
[“the said High Court action”] on 13.10.1993 against the
first, second and third defendants seeking, inter alia, an

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order that the second and third defendants transfer the
trade mark “Indomie” to the first plaintiff. The second and
third defendants filed a Defence on 19.11.1993 to which
the plaintiffs filed a Reply on 24.11.1993. The first
defendant, which did not file a Defence had default
judgment entered against it and was subsequently
ordered to be wound up.
2. Though pleadings were deemed to be closed on
8.12.1993, the plaintiffs never filed a Summons for
Directions or set the action down for trial.
3. About nine years after the commencement of the suit i.e.
on 22.10.2002, the plaintiffs’ solicitors filed an application
purportedly on behalf of the parties named as the first and
second plaintiffs and PT Indofood Sukses Makmur Tbk
[“Sukses Makmur”] to substitute Sukses Makmur for the
said first and second plaintiffs on the grounds that –
(a) Sukses Makmur had taken over the rights and
liabilities of the first and second plaintiffs pursuant to
a purported merger in Indonesia; and
(b) the first and second plaintiffs had been dissolved
and liquidated as at 1.3.1994.
4. The second and third defendants meanwhile filed an
application on 1.11.2002 to strike out the plaintiffs’ action
for want of prosecution. The said application was
dismissed by the learned Deputy Registrar on 28.5.2004.

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5. On 25.6.2004 the learned Deputy Registrar allowed the
application for substitution. The second and third
defendants filed an appeal against the said decision to
the Judge in Chambers who on 25.4.2005 allowed the
said appeal by the second and third defendants as there
was insufficient evidence to show that Sukses Makmur
had taken over all the rights, obligations, assets and
liabilities of the first and second plaintiffs. Further,
important documents in connection with that issue were
not adduced in evidence by the plaintiffs and Sukses
Makmur who would have had possession of the same.
6. When the appeal was first heard before the Judge on
22.3.2005, the learned Judge directed that further
evidence to be adduced to support the application for
substitution. The solicitors for the second and third
defendants had written to the Court, via letter dated
22.3.2005, objecting to the further evidence being
adduced at the hearing of the appeal unless they satisfied
the conditions set out in Order 56 rule 1(3A) of Rules of
High Court 1980. No further evidence was adduced by
the first and second plaintiffs and Sukses Makmur.
7. The first and second plaintiffs and Sukses Makmur have
appealed against the said decision to the Court of Appeal
and that appeal has been registered as the Court of
Appeal Civil Appeal No. W-02-653-2005.
8. On 23.6.2005 Sukses Makmur filed an application to be
joined as plaintiff in the said High Court action on

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substantially the same grounds as the application for
substitution referred to earlier. It relied on the same
evidence adduced in the application for substitution. That
application which was opposed by the second and third
defendants was allowed by the learned Judge on
20.7.2005. It was contended by the appellants that the
learned Judge erred in granting the order for joinder
especially when he had earlier dismissed the application
for substitution which had been made on the same
grounds and on the same evidence which he had found to
be insufficient. The Civil Appeal No. W-02-968-2005
herein is in respect of the said decision. The second and
third defendants contended that the basis for the
application for joinder is not consistent with the admission
made by Sukses Makmur that the first and second
plaintiffs had been dissolved and liquidated as at 1.3.1994
in the application for substitution.
9. On 27.6.2005 the learned Judge dismissed the appeal by
the second and third defendants against the decision of
the Deputy Registrar who had on 28.5.2004 dismissed
the said defendants’ application to strike out the plaintiffs’
action for want of prosecution. The Civil Appeal No. W-
02-738-2005 herein is in respect of the said decision.
The learned Judge then proceeded to schedule trial dates
on 25.10.2005, 26.10.2005 and 27.10.2005.
10. On 15.9.2005 the second and third defendants filed an
application in the High Court action for an order that the

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proceedings therein be stayed pending the disposal of the
second and third defendants’ appeals. That application
was heard and dismissed by the learned Judge on
12.10.2005.
11. The second and third defendants then filed the present
said two Notices of Motion in the Court of Appeal for stay
of proceedings in the High Court action.
Having heard the submissions of learned Counsel for the
plaintiffs and the defendants and having studied the affidavits
filed by the respective parties, it is our judgment that the said
Civil Suit No. D4-22-1149-1993 should without further delay go
for trial before the High Court. The parties should stop finding
fault and hurling allegations against one another to derail the
proper conduct of the trial.
As regards the allegation of prejudice caused by the delay
in the commencement of the trial of the said Civil Suit No. D4-
22-1149-1993 we noted that this suit was filed in 1993 and
relate to incidents which occurred as far back as 1991. It is
critical for both parties that the testimony and evidence of the
witnesses be heard immediately. It is for this reason that on
27.6.2005, Counsel for the plaintiffs informed the High Court of
the plaintiffs’ desire for a speedy trial and moved the Court for
early trial dates. The High Court very kindly accommodated the

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request and fixed trial dates on 25, 26 and 27 October 2005
without any objections from Counsel for the defendants.
We also noted that Counsel for both parties had
thereafter attended before the High Court again on 20.7.2005 at
which time further directions were given by the Court for
Witness Statements to be delivered before the next pre-trial
conference for Case Management on 12.9.2005. Again, no
objections were taken by Counsel for the defendants. Further
pre-trial directions for the conduct of the trial were given by the
High Court on 15.9.2005, on which date Counsel for the
defendants had also expressly participated in the conference.
For example, he did not object to the observation made by
Counsel for the plaintiffs for a split trial on liability and damages.
Counsel for the defendants also sought time from the Court to
filed the Amended Defence and prepare the Analysis of
Pleadings and Witness Statements.
We find that by the subsequent pre-trial conference for
Case Management on 12.10.2005, the plaintiffs’ solicitors had
already served the plaintiffs’ Bundle of Documents on the
defendants’ solicitors and the plaintiffs’ Witness Statements.
Counsel for the plaintiffs had also informed the High Court of
the primary issue to be determined at the trial and confirmed
the number of witnesses to be called on behalf of the plaintiffs.
We were also informed by learned Counsel for the plaintiffs that

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a final pre-trial conference for Case Management was just
completed on 19.10.2005 when the finalized Analysis of
Pleadings prepared by the defendants was handed to the High
Court. It is our considered view that the defendants are
estopped from seeking an order to stay the trial by reason of
their conduct and participation in pre-trial conferences for case
management before this Court.
It is our judgment that there are no special circumstances
justifying a stay of the trial in the High Court as any prejudice
that may be suffered by the defendants may be compensated in
costs. As it is now we find that the defendants have not shown
how the defendants’ appeals in Civil Appeal No. W-02-738-
2005 and Civil Appeal No. W-02-968-2005 may be rendered
nugatory if the trial of this action is proceeded with.
As to the complaint and dissatisfaction of the defendants
that Sukses Makmur has been added jointly as the third plaintiff
in the said High Court action, we are of the view by reason of
this joinder all parties are now before the Court. All matters in
dispute in the case may be effectually and completely
determined and adjudicated before the High Court. Even
assuming the defendants succeed in their appeals, the first and
second plaintiffs can still prosecute the claim. All in all, we are
of the view that if the trial is adjourned, the plaintiffs will suffer

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grave prejudice. Conversely, if the trial proceed as scheduled,
the defendants will suffer no prejudice.
For the reasons above stated we would dismiss the
defendants’ appeal in Civil Appeal No. W-02-738-2005 and Civil
Appeal No. W-02-968-2005. We also make an order that the
appeal by the plaintiff in Civil Appeal No. W-02-653-2005 be
withdrawn and dismissed. As to the costs of proceedings of the
three appeals before this Court, the costs are to follow the
event of the trial before the High Court. Deposits paid are to be
refunded to the respective parties to the present three Appeals.
(DATO’ ZULKEFLI BIN AHMAD MAKINUDIN)
Judge
Court of Appeal
Dated: 12 November 2008
Counsel for the Appellants:
Mr. Michael C. M. Soo, Mr. Romesh Abraham and Mr. Ong Boo Seng.
Solicitors for the Appellants:
Messrs. Shook Lin & Bok.
Counsel for the Respondents:
Mr. Tommy Thomas, Ms. Chew Kherk Ying and Ms. Elaine Yap Chin Gaik.
Solicitors for the Respondens:
Messrs. Wong & Partners.